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Hoefers v. Jones

April 29, 1994


The opinion of the court was delivered by: Herman, J.S.C.

In this post-judgment plenary application, defendant/father seeks termination of joint custody agreement terms requiring him to pay non-public, primary school tuition for the two children of the marriage. He asserts that as a matter of law, that pursuant to the negotiated agreement, he cannot be compelled to make such payment notwithstanding his ability to pay; further that such payment infringes on his First Amendment and State freedom of religion rights. He does not contest, however, plaintiff's authority as primary residential parent to continue the children's education at the school of her choice.


On April 11, 1991 plaintiff and defendant were divorced. Plaintiff has since remarried; she currently lives with her husband in East Greenwich Township. Under a joint custodial arrangement, plaintiff was designated the primary residential parent of the parties' two children, B.J. and W.J. whose private schooling is now at issue before this court.

As part of the divorce settlement, the parties executed a comprehensive, 30-page, fully negotiated agreement which provided, in part, for defendant's payment of weekly child support of $500 until each child is emancipated*fn1 and for his payment of his children's private school tuition for the year 1991-1992 as well as conditions upon which such payments would be continued thereafter. The father has made the required monthly tuition payments through the end of the 1991-1992 school year. Defendant now objects to further payment. Plaintiff seeks enforcement. The relevant Agreement provisions relating to child-rearing and education are these:

... 10. CHILD SUPPORT. (a)(2). Husband is currently paying for (B.J.'s) private schooling at King's Christian School, and W.J. will be starting in September, 1991. Husband will be responsible for private school so long as the children are doing well there and both parties agree that they remain in private school, and Husband has to have the ability to pay same. This must be discussed between the parties on an annual basis. Wife shall provide to Husband all information regarding the schooling and the tuition costs prior to Wife committing for same ...

11. CUSTODY. (a) Legal and Physical Custody. It is the intention of the parties that the parties shall have joint legal custody of the minor children, B.J. and W.J. and Wife shall be primary residential custodial parent. The parties agree that major decisions concerning (B.J.) and (W.J.) regarding the health, education, and general welfare shall be made by the parents jointly, after discussion and consultation with each other, with a view toward obtaining and following a harmonious policy in the child's best interests.

(i) Each party shall keep the other party informed as to the progress of the children's education and social adjustments.

(ii) The parties shall give support to one another in their role as parents, and each shall take into account the views of the other regarding the physical and emotional well-being of the children. The parties shall not attempt to alienate the affections of the children from the other party nor permit any third person to attempt to so alienate the affections of the children from the other party.

(iii) Each party shall notify the other of any activity that could reasonably be expected to be of significant concern to the other.

(iv) Toward that end, the parties agree to consult as necessary to discuss the child's progress. Day-to-day decisions shall be the responsibility of the Wife, who is the parent having physical custody ...

Presently at issue in this litigation is tuition payment for the school years 1992-1993 and 1993-1994.

Defendant testifies that in mid-1992 he told his former attorney that he objected to the children's continued attendance. As a former public school graduate he is a firm believer in a public school education. As an agnostic he has had ongoing concerns since the beginning of the children's schooling at King's Christian School because he objects not to their religious training per se, but the mixing of religion in everyday schooling ("I had this opinion all along ... I mistakenly held it inside since day one ..."). He acknowledges that his expressed "views" and the agreement terms are not consistent. He admits that since the 4-11-91 divorce he has not had any discussions with his former wife about the subject of education. While married, he further admits, that he took no steps to enroll either child in public school. His self-recalled, initial and last contact with King's Christian School was two school visits in Jan., 1993: the first for five minutes, unannounced; the second, a week later, for forty-five minutes where he did have an opportunity to hold "... an open-ended discussion with B.J.'s and W.J.'s principal and teachers ..." His last contact with his children was in July, 1992. He has made no requests since for visitation.

Plaintiff testifies that during the marriage the parties lived together in West Deptford Township; that the children had attended a Baptist nursery school for two years and that prior to B.J.'s enrollment in Sept., 1990 plaintiff made a thorough investigation of the West Deptford and King's Christian Schools ("I went to check out accreditation, pupil ratio, etc... I was impressed ... we both agreed that (B.J.) would go to King's Christian School ..."). She further testified that in May, 1991 she registered W.J. there as well. She can recall no discussion, no complaints from the husband. In July, 1991 she received the 1991-92 tuition coupon book which she gave to the defendant. As before, he paid without complaint, raised no objection to the children's schooling. She saw to it that he got report cards. When the children would visit, they would bring the week's work. His involvement with their children's education, she recalls, was limited to one Saturday afternoon, March, 1992 school open house ("... since the divorce I made efforts to discuss the kids' schooling with him ... I wanted a once-a-month sit down ... he thought that idea was stupid ...").

In summer, 1992 she mailed a new coupon book to the defendant as she was required to do pursuant to ¶ (a)(2) of Section 10 of the marital agreement. He did not reply. Plaintiff first learned of defendant's objection to paying for the 1992-93 tuition through a letter from his counsel. It was not until Jan., 1993 that the defendant personally expressed to her his unwillingness to continue such payments.

In this family, pre and post divorce, it has been the mother who has investigated, evaluated the children's educational opportunities, who has made, with defendant/father's consent, the appropriate schooling choices. She has been energetically committed to every aspect of their education. She transports them, occasionally with her mother's help, to and from school daily, a 20-minute-plus, one-way car journey. Her desire to see them continue at King's Christian School is not predicated on primarily religious-value issues, but upon her sincere belief that it is here that the children will receive the best education, will be happiest, most productive and most secure.

The court finds that the plaintiff's perceptions are well founded: It appears that both children are educationally thriving, very happy with their school, their teachers and the friends they have made ("... (W.J.) is doing very well in all classes ... a little struggle with reading ... he's now enrolled in a summer reading enrichment program ... he's a wiz at math ... (B.J.'s) report card is all Os ... O's for outstanding ... she is taking drama ...").*fn2

At the post-judgment plenary hearing, each side called one additional witness; the defendant, Douglas Villanova, Principal, Samuel Mickle School, East Greenwich. Mr. Villanova described the expansive curriculum that was available to all public school primary grade students-that would be likewise available to B.J. and W.J. as township residents. It is agreed by all that this public school provides outstanding programming for its students, from those in remedial classes to the gifted and talented. The court was impressed with his testimony in detailing new reading approaches, the school's computer center, its enrichment courses, its large new gym and library, its music and art programming. The court also concludes that the principal's recitation of how the school taught values-i.e. by integrating concepts of friendship, caring, right/wrong, etc. into the curriculum-serves its children well, would serve B.J. and W.J. equally as well if they attended.

The plaintiff's witness was Mrs. Marge Savage, Senior Administrator of King's Christian School, grades K through 12. At the school for 24 years, 17 as an administrator, before that a public school teacher, like Mr. Villanova, she presented as an outstanding, dedicated educator and administrator. Mrs. Savage testified that King's Christian participates in standard national testing, P.S.A.T., S.A.T. programs, is accredited by Middle States Association of College and Schools; likewise, by the State of New Jersey. Divided into two locations, K to 6 & 7 to 12, total student population is 550. She states the average student ratio is 16 to 20 and that of its current graduating class of 29, all but two are going to college. Mrs. Savage further testified that the school faculty must be degreed teachers, state certified; that there is a salary incentive at King's Christian for teachers to pursue Master's degrees; and that 35% to 40% of all teachers have them. Tuition is approximately $2500 per child per year. Mrs. Savage, like Mr. Villanova, gave detailed testimony on the breadth of course curriculum and school facilities. The court concludes that based on the collective testimony, each school offers its students excellent educational opportunities.

The issue of values, how taught, also received considerable attention: Mrs. Savage testified that at King's Christian, the Bible was the basis for the teaching of values, that such values were primarily communicated through everyday course discussion, although there is one Bible study class per day. She testified that most textbooks were secular, that the first mission of the school was education ("... the families in our school represent 160 different church backgrounds ... we don't pretend to be a church, but we do try to teach religious and moral values ...").*fn3 In her testimony, plaintiff had expressed to the court, that in addition to the quality of the curriculum she thought her children would receive at King's Christian, she believed the school's teaching of Judeo-Christian precepts, interwoven into the daily course study, was of much benefit to her children. It was one reason she was attracted to the school. As noted earlier, this court is convinced that the plaintiff has reached these views based on her own sincere, thorough investigation and evaluation.


The public policy of this state is to encourage separated or divorced parents to share the rights and responsibilities of child rearing. Joint custody is one such arrangement requiring "consultation between the parents in making major decisions regarding the child's health, education and general welfare." N.J.S.A. 9:2-4. Though not specifically sanctioned by statute until 1990, our courts have previously held joint custody to be an appropriate remedy in matrimonial custody cases that would apportion between the parents "both equal rights and equal responsibilities regarding the care, nature, education, welfare of their children," that would "... allow both parents full and genuine involvement in the lives of their children following a divorce ..." Beck v. Beck, 86 N.J. 480, 485, 432 A.2d 63 (1981).

A joint custody agreement, any custody agreement, by necessity also requires a common sense decision-making process sans court that advances the best interests of children, which frees the children from the web of parental deadlock. In that respect, the parties' agreement attempted to do just that by defendant's ceding to plaintiff, as residential custodian, the day-to-day decision-making responsibility. This arrangement seems to reflect the current status of the law, the real-life impracticality of judicial tie-breaking and micro-family management. Cf., Brzozowski v. Brzozowski, 265 N.J.Super. 141, 625 A.2d 597 (Chan.Div.1993), Pogue v. Pogue, 147 N.J.Super. 61, 370 A.2d 539 (Chan.Div.1976); Boerger v. Boerger, 26 N.J.Super. 90, 97 A.2d 419 (Chan.Div.1953).

However, defendant now believes that he has a right to take his acts of acquiescence one step further: He seeks to trade his indifference for his right not to pay or contribute towards his children's private school tuition costs. He asserts, as noted, that a literal reading of ¶ (a)(2) gives him an absolute right not to pay if he so chooses (the children's best interests, his ability to pay, he says, being irrelevant).

When seeking the parties' intent, agreement terms should be read in context to the whole rather than focusing on isolated phrases or paragraphs. Joseph Hilton & Associates, Inc. v. Evans, 201 N.J.Super. 156, p. 171, 492 A.2d 1062 (App.Div.1985); as to a marital agreement, that certainly means the applicable laws upon which it relies, the equitable principles which supports its enforcement. See, N.J.S.A. 2A:34-23, N.J.S.A. 9:2-4, Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980), Schlemm v. Schlemm, 31 N.J. 557, 158 A.2d 508 (1960).

As aforementioned, the support component of the parties' agreement requires the defendant to pay all private school tuition through school year 1991-92 and to continue paying it all subject to certain conditions enumerated in ¶ (a)(2) of Section 10 (see, I.). Defendant urges that this provision stands alone not subject to enforcement without his consent. If there were meaningful dialogue and consultation, defendant's argument that ¶ (a)(2) requires "both parents" to agree before he would be obligated to continue to make tuition payments has merit. Clearly this is what the agreement says; absent a showing of fraud, coercion, duress or unconscionability, courts should give great deference to enforcing the bargain made by the parties. Cf., Lepis v. Lepis, supra; Edgerton v. Edgerton, 203 N.J.Super. 160, 171, 496 A.2d 366 App.Div.1985) citing Smith v. Smith, 72 N.J. 350, 358, 371 A.2d 1 (1977). "... Consensual arrangements should not be unnecessarily or lightly disturbed ..."

Joint custodial arrangements, such as this one, require as a precondition the willingness to communicate. The law imposes an obligation upon the parties to consult in meaningful, constructive ways, to endeavor to harmonize their views. The parties in Section 11 of their agreement recognize these mutual obligations ("... major decisions ... shall be made by the parents jointly, after discussion and consultation with each other, with a view toward obtaining the following harmonious policy in the child's best interests ..."). Such discussion, this court concludes, is a precondition for ¶ (a)(2) decision-making. See, Joseph Hilton & Associates, Inc. v. Evans, supra. It is uncontradicted that the defendant did none of that. Instead, he had his lawyer send plaintiff a letter declaring his pre-determined decision to discontinue his payment for B.J.'s and W.J.'s education at King's Christian School. His lawyer's letter, in this instance, was an invitation to a lawsuit, not an acceptable substitute for a personal telephone call or any other form of meaningful, civil dialogue that one would or should expect of a parent who insisted upon joint custody.

In this case, defendant seeks to enforce his right to say "no" by erecting a wall of silence, by cutting off all communication with his former wife, indeed, with his children as well. He relied, instead, on his lawyer to be his surrogate joint custody messenger. This court finds that process inherently flawed and contrary to the prescription of statute which requires divorced parents "to share the rights and responsibilities of child rearing ...", to make provision in joint custody agreements "... for consultation between the parents in making decisions regarding the child's health, education and general welfare .." N.J.S.A. 9:2-4.

Allowing the defendant to evade, to unilaterally vitiate his statutory and contractual responsibilities to consult, to communicate, to attempt to harmonize differences on behalf of his children-in this instance their education-would be a gross injustice which a Court of Equity should never sanction. Cf., Associated East Mortgage Co. v. Young, 163 N.J.Super. 315, 330, 394 A.2d 899 (Chan.Div.1978); Brower v. Glen Wild Lake Co., 86 N.J.Super. 341, 350, 206 A.2d 899 (App.Div.1965), "Equity will not consciously become the instrument of injustice." A Court of Chancery, where such an injustice is evident, must firmly assert its role of parens patriae and enter judgment in accord with such equitable principles as may be required to protect and promote "the best interests" of the children within its jurisdiction. "Best interests" means, among other things, the right of children to be supported, nurtured, educated in accord with the collective available income of both parents, to require parents to keep their promises, to keep their commitments consistent with their ability to do so. Guglielmo v. Guglielmo, 253 N.J.Super. 531, 602 A.2d 741 (App.Div.1992); Walton v. Visgil, 248 N.J.Super. 642, 591 A.2d 1018 (App.Div.1991); Zazzo v. Zazzo, 245 N.J.Super. 124, 584 A.2d 281 (App.Div. 1990); Dunne v. Dunne, 209 N.J.Super. 559, 508 A.2d 273 (App.Div.1986). If one parent is allowed to improvidently close his eyes and wallet to his obligations so as to require the other parent to utilize an added portion of his or her assets or income to fill that void, the children's right to adequate support is effectively diminished. Thus, to the extent that the plaintiff/mother has been forced to expend child support funds for school tuition for years 1992-93 & 1993-94 that otherwise would have been available for other needs, the court must conclude that the "best interests" of B.J. and W.J. have been impaired by the defendant's conduct.

It is not for the court to conjecture what would have been the end result of such tuition/school discussions if the defendant had fulfilled his obligation to consult after receiving from the plaintiff/mother the payment book for the next school year. According to his own testimony he had in the past, notwithstanding his reservations, conceded such attendance. At the very least, plaintiff had the right to expect, under the terms of the marital agreement, a fair opportunity to dialogue, to convince the defendant, as she did before, that they should both support the children's continued attendance at King's Christian School. She relied upon his word that what he signed he would honor. His ensuing unwillingness to communicate, to consult deprived her of that important, bargained-for right.

A Court of Equity, as a Court of Conscience, cannot be used as a forum to advance or condone wrongdoing. Cf., Sheridan v. Sheridan, 247 N.J.Super. 552, 589 A.2d 1067 (Chan.Div.1990). Defendant's clear breach of his statutory and contractual obligations, to the detriment of the plaintiff, constitutes such wrongdoing. The equitable doctrines of "Unclean Hands" and equitable estoppel must preclude any relief sought by him, any defense he asserts. Cf., Schmidt v. Schmidt, 220 N.J.Super. 46, 51, 531 A.2d 385 (Chan.Div.1987), "It is well settled that the equitable maxim-`he who comes into equity must come with clean hands'-applies to matrimonial cases ... the doctrine of `Unclean Hands' gives expression to the equitable principle that a court should not grant relief to a wrongdoer with respect to the subject matter in suit." See also, Goodpasture v. Goodpasture, 115 N.J.Super. 189, 197, 278 A.2d 531 (Chan.Div.) quoting from Flammia v. Maller, 66 N.J.Super. 440, 169 A.2d 488 (App.Div.1961) holding: "equitable estoppel embodies the doctrine that one may not repudiate an act done or position assumed where the course would work injustice to another who, having the right to do so, relied thereon ...", and Miller v. Miller, 97 N.J. 154, 478 A.2d 351 (1984), where Justice Handler, concurring in part and dissenting in part, eloquently expresses the need for a more expansive application of the doctrine of equitable estoppel where children are involved:

In the matrimonial context, when the rights and interests of innocent children are at stake, we should consider in applying the doctrine of equitable estoppel whether there was a course of conduct that, in its cumulative impact, was tantamount to a representation made by one party with the expectation that other persons would rely on this conduct, and whether, as a natural and probable consequence, such persons did in fact reasonably rely, resulting in a detriment to them. That detriment-the disadvantage or change of position-can occur because of the actor's subsequent repudiation of his or her conduct and disavowal of the expectations engendered by that conduct. Id., at pp. 172, 173, 478 A.2d 351.

Accordingly, the court finds and determines that the defendant shall be required pursuant to ΒΆ (a)(2) of the marital agreement to pay 100% of the children's tuition for the school year 1992-93. I further conclude, however, that his January, 1993 personal reaffirmation to plaintiff that he would no longer pay the King's Christian School tuition prospectively voids this paragraph. The court must next decide whether, under the facts and law of this case, Section 11 of the agreement, absent ...

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